COMMISSIONER TRADE TAX Vs. COOPERATIVE CO LTD

JUDGEMENT

(1.) These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the orders of Tribunal dated 15.09.1097 both relating to the assessment years 1985-86 and 1986-87 under the U.P. Trade Tax Act respectively.

(2.) A common question of law is involved in the present revisions for consideration of this Court as to whether the price of the bottles charged from customers is liable to tax. in a case where on a return of bottle, some of price of bottle was liable to be refunded.

(3.) The brief facts of the case are that the Dealer/Opposite Party (hereinafter referred to as "the Dealer") was engaged in the business of Country liquor and Indian made foreign liquor. In the assessment order, it is mentioned that in the assessment year 1986-87 as per the letter dated 29.3.1986 of the Commissioner of Excise, U.P., dealer was permitted to charge the price towards bottle in the case of 750 ML bottle at Rs. 2.30, 500 ML bottle at Rs. 2.20 and 250 ML bottle at Rs. 2.10 from the retail vendor and in case of return of bottle, a sum of Rs. 1.45 was returnable in the case of 750 ML bottle, at Rs. 1.35 in the case of 500 ML bottle, in the case of 250 ML bottle at Rs. 1.25. For the assessment year 1985-86, though any order passed by the Excise Commissioner has not been referred but it is stated that the same position was there in this assessment year also. Before the Assessing Authority it was claimed by the dealer that the price of bottle was nominal and the dealer was not intended to selhbottles, inasmuch as, the consumed bottle have been returned. Claim of dealer was that the bottle was given on bailment and not as a result of sale. The Assessing Authority did not accepted the plea of the dealer and held that the bottles were sold alongwith the liquor, for which, prices were also charged, therefore, prices charged were held liable to tax. Plea of the bailment had not been accepted. Matter went in appeal before the Deputy Commissioner (Appeals). First Appellate Authority allowed the claim and held that the bottles were returnable and were given on bailment and not as a result of sale, therefore, the amount taken towards bottle were held not liable to tax. Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal up held the order of the First Appellate Authority.